An ITC judge recommends a U.S. ban for the Xbox 360, even though that seems highly unlikely

The Microsoft Xbox 360 game console should not be imported, and units on store shelves should be pulled, according to an International Trade Commission judge.

Last month, ITC Administrative Law Judge David Shaw found both the 4GB and 250GB editions of the Xbox 360 infringe on four Motorola patents. Specifically, the issue surrounds the H.264 codec which Motorola holds patents dealing with the video codec. However, Microsoft argues that H.264 should be more openly licensed.

Before the Xbox 360 can be banned, however, the ITC Board of Commissioners will double-check the ruling before a final decision is made. A deadline of August 23 has been scheduled, before any type of legal documents can be approved by Pres. Obama’s administration to finalize the ban.

Meanwhile, Microsoft looks forward to the six-member commission ruling in August, and believes its product can continue to be available in the US.

In addition to being unfair to consumers, there is another major factor that needs to be considered after Shaw’s ruling:

“Unlike judges at courts, ITC judges don’t make the decisions: they merely recommend them. Their recommendations are very frequently not adopted by the Commission, the six-member decision-making body at the top of the ITC. Not only does the Commission overrule those judges with respect to the actual violations but the Commission also has the final say on remedies.”

Furthermore, game studios and other companies reliant on the Xbox 360 can chime in to help persuade the commission from physically banning the Xbox 360.

Motorola had the Windows 7 OS and Xbox 360 banned in Germany, which set a precedent that some analysts believed would lead to additional global crackdowns. In addition to this ongoing legal saga, Microsoft can celebrate knowing it helped contribute to the ban of Motorola Android-powered phones to the US consumer market.

"Nowadays, security guys break the Mac every single day. Every single day, they come out with a total exploit, your machine can be taken over totally. I dare anybody to do that once a month on the Windows machine." -- Bill Gates